John Kerry

Mr. KERRY

Mr. KERRY. Senator Kennedy and I are delighted to join in a resolution paying tribute to a unique American who passed away last Friday at the age of 83--a fighter to the end, and really a rather remarkable and fascinating individual--Ted Williams. Over the span of 21 amazing years with the Boston Red Sox, Ted Williams redefined baseball's greatness. Everyone knows about his .406 batting average in 1941. Not everyone knows that he had an option to settle that year for a less than .400, or that he would have been rounded up to a .400 batting average. It was about .399. In the last day of season, with the doubleheader, a day that he was offered the opportunity to sit it out so he wouldn't lose his .400 if he had a bad day, there was no way he would do that. It was not his style. He stepped up to bat, and hit 6 for 8 and took his average up to the .406, which now stands as a memorable and unequaled batting average since that period of time. He had 521 career home runs; a .344 lifetime batting average; 2 of the 4 Red Sox Triple Crown Awards, twice the American League's Most Valuable Player; 6-time American League Batting Champion, 18 American League All-Star appearances; and a member of the Baseball Hall of Fame. He was quite literally the father of the Red Sox nation, and, for millions of us, he came to live out what was his greatest wish--that if people ever saw him walk down the street they would say, There goes the greatest hitter who ever lived. Indeed, that is what people would have said. Beyond the statistics and awards, which speak volumes about what he accomplished in a Red Sox uniform, so many of us in this country have an even deeper respect for the individuality he expressed in almost everything he did: His uniqueness as a fisherman; his uniqueness in his contributions to the Jimmy Fund to raise funds for fighting cancer to help others; but especially what he did in the 5 years he spent wearing the uniform of his country, reminding each of us of what it means to be a citizen soldier, to leave a citizen's life to go out and fight for your country and then come back to resume what you did before. No one knows, but lots of people have speculated about what kind of career numbers this man might have posted, what records he would have broken, if it had not been for those 5 years during the prime of his baseball career while he served as a pilot and a member of the greatest generation. All of us would wonder. He walked away from the major leagues to serve his country as a fighter pilot. He flew as a wingman beside our colleague, Senator John Glenn, during Korea, performing a memorable emergency landing in a damaged plane that was on fire. And when he was later asked why he didn't just bail out, he told people he was fearing the fact that he might injure his knees--as you punch the button to bail out and you pull out of the cockpit. If you were tall, your knees often would be broken hitting the edge of the cockpit itself. He would sooner have died than not have been able to play baseball because of that potential injury. It was a conscious choice. Another time, he escaped to safety after being hit with anti-aircraft fire. Ted Williams was a courageous person, bigger than life, tough as nails, and he had that rare ability to sum up perfectly in his character so many things that speak about a generation, about our country, and about a game that is known as our national pastime. We all hope we will find citizens such as him and ballplayers such as him again. We join in mourning his loss and reflect on all that he gave to his country.

Mr. KERRY

Mr. KERRY. Mr. President, I represent a State with one active nuclear reactor powerplant and a second decommissioned nuclear power plant, both of which are storing nuclear waste far beyond their initial design limits. I can assure you there is much concern within my State over what the government plans to do with nuclear waste and a sense of urgency to get something done. I cannot in good conscious however vote to make Yucca Mountain the destination for all of our nuclear waste when a number of studies urge caution and further study to make sure that we are not making a mistake, a mistake that could plague the people of Nevada and potentially more than 40 other States in which we will transport this nuclear waste in the years to come. In the late-1970s President Carter, himself a nuclear engineer, initiated an Interagency Review Group, IRG, to solve once and for all the high-level nuclear waste problem in the United States. The IRG tasked the Department of Energy with finding the best sites in the country for storing our nuclear waste. At the same time, the Environmental Protection Agency, EPA, and the Nuclear Regulatory Commission, NRC, were tasked with developing criteria for the selection of sites. Then, in 1982, Congress enacted the Nuclear Waste Policy Act, NWPA, which included a commitment to identifying two sites. Between 1982 and today, however, the process was changed. In 1987, Congress amended the NWPA by directing DOE to develop only one site, Yucca Mountain. Yucca Mountain was selected as the only site for purely political reasons. Over the years, the EPA has lowered standards when they discovered that Yucca Mountain could not meet the existing ones. They abandoned a collective radiation dose limit when it was discovered that the Yucca site could not meet it, and, just last year, the EPA promulgated final standards for licensing Yucca Mountain that rely on dilution of nuclear waste as opposed to containment. In other words, we changed the standards so that we did not have to change the site. Yucca Mountain was picked, in part, because it is an arid, unpopulated area already owned by the federal government, which used it as a nuclear test site from the 1950s to the early 1990s. The original theory was that, if canisters deteriorated, there would be little water in the dry ground to carry the radioactive waste to other areas. But that theory has already been thrown as Chlorine-36, a radioactive isotope created during nuclear weapons tests over the Pacific Ocean in the 1950s, was recently discovered 1,000 feet below ground at Yucca Mountain. In just 50 years, that material traveled in the atmosphere to Nevada, was delivered as rain at Yucca Mountain and traveled at least 1,000 feet below the surface--the level where the nuclear waste would be stored. Such rapid movement was completely unexpected and required a revision of models of water flow in the area. Because of this Chlorine-36, the DOE plans to bury the waste in canisters made of Alloy 22--a new composite metal containing nickel, chromium and molybdenum--and then lined on the inside with stainless steel. Alloy 22 is resistant to corrosion from water, but it is a manmade substance that has existed for only about 20 years. The DOE has only about 2 years of data on the effects of corrosion on it. Using such limited data, the government is predicting the life expectancy of the canisters 10,000 years into the future. No other nation is planning to use Alloy 22 to bury its nuclear waste, and the material does not exist in nature, so there is no way of naturally predicting how strong it will prove to be. Clearly, further study is needed before reliable predictions can be made. I am concerned that President Bush approved Yucca Mountain despite the fact that the General Accounting Office back in December of last year, identified more than 200 important scientific and technical questions about Yucca Mountain that remain to be answered. This is especially troubling because Presidential candidate Bush promised back in 2000 that ``sound science, not politics, must prevail'' in determining whether to bury nuclear waste at Yucca Mountain. The GAO report urged the administration to postpone a decision until these questions could be answered. I am disappointed that the administration has failed to listen to the GAO. There are transportation issues as well. I am not entirely convinced that we have a well-thought-out plan for moving all of this nuclear waste from around the country. The safety record of nuclear waste transportation should give us pause. Between 1964 and 1997, the DOE made approximately 2,913 shipments of used nuclear fuel. During this time, there were 47 safety incidents involving nuclear shipments, including six accidents. Much is left to be decided on transportation and I for one am reluctant to proceed until we have answers as to how this material will be shipped, on what routes, by what means and near what major cities. None of these questions have been answered, and I believe we should know if we can move this radioactive waste safely before we designate a national repository. The routes for transporting nuclear waste to Yucca Mountain have not been finalized by DOE. The DOE is currently considering three modes of transportation, rail, truck and barge, but the DOE has not finalized the modes nor the routes. In the Final Environmental Impact Statement, EIS, for the Yucca Mountain project, DOE proposed a set of truck, barge and rail routes. These routes make use of major highways and pass through several of the Nation's largest metropolitan areas. The EIS for Massachusetts shows that if trucks are used to move the waste, 456 truck trips would originate in the Bay State and another 1,469 trips would transit the state en route to Yucca Mountain. Under the rail scenario, the EIS showed that 39 rail trips would originate in Massachusetts and another 511 would pass through the state en route to Yucca. In addition, the NRC is responsible for testing the containers that the waste will be shipped in. Thus far, all of the NRC tests relied exclusively on computer simulation to test the storage containers against fire and water damage. I think we can all agree that more testing is needed with actual storage containers to ensure the safety of all Americans. Because of this lack of testing and with real concern for their cities, the Conference of Mayors recently passed a resolution calling on the Federal Government to oppose the Yucca Mountain repository until the serious safety concerns in the transport of nuclear waste were answered. Some of these concerns include the lack of physical testing of the transport casks and the lack of money and knowledge in our cities needed to deal with an accident involving nuclear waste. I believe we would be wise to listen to our mayors. None of us here today want this waste to stay onsite forever, but we need a safe and responsible solution for disposal of the waste we have created. And we urgently need to develop a policy that protects the health and safety of local communities and all Americans. There are too many unanswered questions about the long-term effects of storing the waste at Yucca Mountain and the means by which we transport that waste there, and that is why I am voting no today.

Mr. KERRY

Mr. KERRY. Madam President, I would just like to take a moment to express my thanks to Senator Levin and Senator Warner for working with me to clear this amendment in such a timely fashion. I think special thanks should also go to Senator Carnahan, a member of both the Senate Committee on Small Business and Entrepreneurship and the Senate Armed Services Committee for her support of this amendment. Senator Carnahan's work was vital to this amendment's acceptance by the Armed Services Committee, and I thank her for her assistance as well as for her continuing interest and advocacy for America's small business Federal contractors. I would also like to thank Senator Bond for his help on the Republican side. Concern for our Nation's Federal contractors remains an important area of bipartisan interest on the Small Business and Entrepreneurship Committee, and I am pleased to have his support on this amendment. Briefly, our amendment requires the Secretary of the Army to conduct a study on the impact the creation of an Army Contracting Agency will have on small business participation in Army procurement, especially at the local level where many small businesses provide support services to Army installations. When we first received word of Secretary of the Army Thomas E. White's plan to consolidate army procurement activities into a central location, I was very concerned about its possible affects on small businesses. And despite briefings from Army personnel and assurances that small business participation will not be negatively affected, I remain concerned as do my colleagues. This is a critical time for our armed forces, and I do not wish to cause any confusion in the procurement process that could affect our military preparedness. Therefore, we are taking a ``wait and see'' approach to the Army's plan. Our amendment will help monitor the situation at the Army by requiring them to keep track of small business participation in their procurement, especially at the local level. The amendment requires the Army to track any changes in the use of bundled contracts, sometimes called consolidated contracts, as a result of this new procurement agency, as well as track small business access to procurement personnel. Let me be clear. Removing contracting authority from Army installations and centralizing it will result in less small business participation, but steps can be taken to overcome this. These steps must be proactive and represent a real commitment to maintaining small business access to procurement opportunities. And while I do not believe Congress should dictate every detail of how the Army chooses to structure itself for procurement purposes, Congress must be concerned about the consequences of that structure. I look forward to working with the Secretary to ensure that an appropriate level of small business participation in Army procurement is maintained. Once again, I would like to thank Senator Bond and Senator Carnahan for their support on this issue, as well as Senator Levin and Senator Warner for accepting this amendment.

Mr. KERRY

Mr. KERRY. Mr. President, I would like to respond to the comments made yesterday morning by the Secretary of Transportation in regards to Amtrak. Frankly, I am puzzled by his remarks yesterday, puzzled because many of us in this body have been calling for the administration to take a position on Amtrak's future since last July, when a group of us met with Secretary Mineta and Federal Railroad Administrator Rutter. Earlier this year, when the Commerce Committee prepared to mark-up the National Defense Rail Act, we again sought the administration's input. The administration did not raise any significant objection, and the bill was reported favorably by the committee by an overwhelming margin. Indeed, the only thing we knew of the administration's feelings toward Amtrak was that the Office of Management and Budget refused to release the $100 million in funding that the Congress appropriated late last year for improved security on trains and in stations. After a full year of being AWOL on this issue, the administration suddenly announced that it would like to see massive, but vaguely defined, structural changes at Amtrak. And Secretary Mineta has said that without these big changes, whatever they may be, the administration will oppose Congressional attempts to increase funding for Amtrak. The Senate should not be cowed by this kind of bullying. The administration could have been a full partner in this process by raising these concerns last year, or even before the committee considered the National Rail Defense Act. Instead, the administration has chosen to take a position that is diametrically opposed to the goals of the National Defense Rail Act, which now has 35 cosponsors. Rather than give Amtrak the resources it needs to run a forward-looking, national rail system, it seeks to tear down our national rail system and replace it with a model similar to the failed British model of rail privatization. The administration would like to have a regional passenger rail system, based on a model that is universally derided for its inefficiency and its lack of safety. The British experience has shown us that safe, efficient, reliable service cannot be done on the cheap. But that kind of short- sighted penny-pinching is exactly what the President has in mind. This strategy could strip countless communities, including several in Massachusetts, of train service, further reducing transportation alternatives in those parts of our country. Much as the administration would like to score philosophical points with conservative think tanks, the issue here is not who actually runs the trains and maintains the tracks. The fact is that the most important issue for Amtrak is funding, and whether we want to dedicate the sort of funds that will be necessary to maintain and enhance a national passenger rail network, and whether we want to try to build high-speed rail corridors into that network. In his remarks yesterday, Secretary Mineta said ``The country can ill afford to throw billions of Federal dollars at Amtrak and just hope its problems disappear.'' He is right about one thing: We cannot wish away Amtrak's problems. But Amtrak's biggest problem is that, for 30 years, we have given it just enough funding to get by, but never enough to be truly viable. In his most recent review of the company's finances, the Department of Transportation's Inspector General mused, ``It's amazing that Amtrak has gotten this far.'' While Amtrak has limped along on insufficient funding, our highways have become choked and our skyways will soon be once again strained beyond their capacity. Now we hear that Amtrak is prepared to shut down as soon as next week unless it receives immediate financial assistance. This will leave 22.5 million riders without train transportation. Let's be clear: The administration, by virtue of its non-involvement in this issue, will bear the responsibility for this unprecedented blow to our national transportation network. I would like to know how the administration will handle the immediate extra burden placed on other transportation modes. Rather than put $200 million into Amtrak, it appears they would prefer to continue to spend billions more on already-clogged highways and skyways. We must remember that this Nation has spent less than 4 percent of our Nation's transportation budget on inter-city passenger rail over the life of Amtrak. We've spent more than $300 billion spent on highways, nearly $200 billion on airports and just $35 billion on inter-city passenger rail in 32 years. As Amtrak's ridership has increased despite its financial condition, that is not good enough anymore. I would also add that Amtrak's place in the $2-trillion Federal budget is tiny. We spend $150 billion per year on debt service alone, but just $521 million on inter-city passenger rail. The Commerce Committee's bill, authorizes full funding for Amtrak's security, operating and capital needs. For the first time in its 30-year history, we would appropriately fund passenger rail. I think a lot of criticisms frequently raised about Amtrak are indeed warranted. Its management structure is top-heavy and unwieldy. The company's new president has already announced plans to restructure management. That is a positive step, but we can and should reserve judgment on the success of that restructuring until it is fully implemented. Amtrak is not sufficiently insulated from political pressures. That is also a legitimate concern, and one that must be addressed. Language inserted in the National Rail Defense Act would take a step toward ensuring that decisions about route terminations are made based on objective financial criteria. Still, we must do more to ensure that Congress provides oversight of the company, without unduly burdening it. Clearly, the company's fiscal problems have been exacerbated by the Congress's unrealistic requirement that Amtrak meet an ``operational self-sufficiency.'' As a result, Amtrak explored a wide variety of revenue options, with varying degrees of success. The new CEO, David Gunn, has expressed a desire to return Amtrak to its fundamental mission of moving people. As these changes in the company are implemented, I believe it would be a grave mistake to allow the termination of Amtrak. And make no mistake, that is the road we are headed down. So I urge my colleagues to work toward an appropriation that will allow Amtrak to stand on solid financial ground in the short term, and toward passage of reauthorization legislation that allows our country to develop high- speed rail corridors without sacrificing traditional rail service. Unfortunately, the administration's plan does neither of those things. I suggest the absence of a quorum.

Mr. KERRY

Mr. KERRY. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. KERRY

Mr. KERRY. Madam President, I ask for the yeas and nays.

Mr. KERRY

Mr. KERRY. Mr. President, I strongly support helping New England fishermen and their communities, and by that I mean helping them now, when they need it, not later this year or next year, but now. And I want to thank our distinguished Chairman of the Appropriations Committee Senator Byrd and the Ranking Member Senator Stevens. I would also like to thank Chairman Hollings of the Senate Appropriations Subcommittee on Commerce, Justice, State and the Judiciary and the Subcommittee Ranking Member, Senator Gregg, for their steadfast support of the New England fishermen and for including provisions to help fishermen and fishing communities in New England recover from the effects of a devastating lawsuit which is already having severe economic consequences in New England. The entire New England groundfish industry is reeling from a lawsuit that was finally decided on May 23. I would like to point out that the fishing season starts on May 1, so the fishermen and the shore side industry learned the rules by which they must live less than a month into the season. It's hard to plan a fishing season under those circumstances. And the ramifications reach beyond just our fishermen. We have over 1,000 active groundfish boats in New England employing thousands of fishermen, and economists estimate that for each job on a fishing vessel we have four jobs on shore to support the industry. In addition, Massachusetts Bay, the prime inshore fishing grounds for the small day boats from our North Shore, South Shore and Provincetown fleets have been closed since January 1. The area was scheduled to open in May, but the court order extends that closure. These fishermen and their families are struggling and have barely made it through the winter. Now, when May comes around they are unable to go fishing, earn some money and pay the bills. These families need help now! I want to be clear. We are not backing away from our obligation to protect New England's fisheries. I know as much as anyone that this is a federal resource. We have an obligation to protect it and preserve it, to ensure that generations of New Englanders have the opportunity to fish and to protect a Federal, natural resource that belongs to all Americans. But at the same time, we are seeking some help for the people and communities who bear the brunt of these necessary conservation rules. These people need some financial assistance while we make the transition to sustainable fishing. I would like to point out that it is not just the New England fishermen who are hurting. As I mentioned earlier, for every job at sea in Massachusetts, economists estimate that we have four shore side jobs to support the industry. This includes net makers, processors, ice dealers and boat maintenance facilities. I should add that part of the court order increased the mesh size from 6 inches to six and \1/2\ inches for all nets used to catch groundfish. This is great for conservation because it reduces the catch of undersized fish, however overnight every fishermen had to replace his nets. That means that all of the net makers with 6 inch mesh were now sitting on hundreds of thousands of dollars of worthless inventory. For the typical gillnetter in New England this means they all have to come up with $10,000 before they can go fishing. Remember, these are all small, family-owned businesses and in some cases these are people that have not been working since January 1. These people need some help! Again I wish to thank Senators Byrd, Stevens, Hollings and Gregg for their stalwart support of these hardworking fishermen and their families.

Mr. KERRY

Mr. KERRY. Madam President, the amendment before us, the Gregg- Feingold-Chafee-Kerry Budget Enforcement Act of 2002, is critical to restoring a sense of fiscal responsibility to the congressional budget process. I urge my colleagues to support it. The amendment reinstates and extends for 5 years the caps on discretionary spending, keyed to the levels in the Senate Budget Committee-passed budget resolution. The caps are scheduled to expire at the end of fiscal year 2002. The amendment also reinstates and extends for 5 years the pay-as-you-go rules for tax cuts and entitlement changes. The pay-as-you-go rule would apply to legislation which increases the non-Social Security budget deficit. The rule would not apply when the budget is running a surplus outside of Social Security. Sixty-vote points of order and the threat of sequestration would continue to provide enforcement for both the discretionary caps and pay-as-you-go violations. To guard against budget evasions, the amendment would shut back-door ways around the caps and pay-as-you-go enforcement by requiring 60 votes to change the discretionary caps, alter the balances of the pay- as-you-go scorecard, or direct scorekeeping. All emergency designations would require 60 votes. I was one of the first cosponsors of the Gramm-Rudman-Hollings deficit reduction legislation in the late 1980s. I understand the importance of fiscal responsibility and budget discipline. The discretionary caps and PAYGO rules have helped impose a sense of fiscal discipline since they were first enacted in 1990. Budget enforcement mechanisms played a key role in stemming the tide of runaway deficit spending. As individuals such as Federal Reserve Chairman Alan Greenspan and former Treasury Secretary Robert Rubin have recognized, the benefits of spending and fiscal restraint are enormous. The remarkable turn-around in the Federal budget during the 1990s contributed to a virtuous cycle of lower inflation, lower interest rates, and higher economic growth. Unfortunately, the budget enforcement mechanisms are scheduled to expire this year. As the Concord Coalition has noted, it would be particular ironic and careless to let the caps and PAYGO rules expire just when the budget is plunging back into deficit. Our bipartisan amendment would prevent that from happening. It will also encourage a discussion of the tough choices that must be made, regardless of procedural mechanisms, to restore fiscal responsibility. As quickly as surpluses appeared, they have disappeared. We must not allow ourselves to return to the previous days of cutting taxes, increasing spending, consuming the Social Security surplus, and running up debt. Beginning in 10 years when the Baby Boomers retire, Congress will face huge unfunded retirement and health care costs. Congress and the President lack a strategy for dealing with these liabilities or for returning to budget balance. Our amendment represents a crucial step for reversing a rapidly deteriorating budget outlook. Formal budgetary restraints are needed to balance the competing claims on the Federal budget. Some opponents express concern that the amendment would place overly restrictive limitations on appropriations. Others outright suggest that the legislation will result in domestic appropriations cuts. In reality, the legislation fully funds the appropriations levels requested in the Senate Budget Committee-passed budget resolution. The amendment exceeds the spending levels requested by the President, allow for more spending on education, health care and other priorities. For fiscal year 2003, the bill would allow $768 billion in discretionary spending. This is a figure commonly cited in current budget negotiations, and considerably higher than the House budget level of $759 billion. If this should prove insufficient, Congress can either raise the caps or declare the spending as emergency spending to avoid enforcement consequences. Finally, some opponents criticize the amendment's pay-as-you-go entitlements/tax rule because it allows spending or tax cuts when the government is running a surplus outside of Social Security. This exception is important because it will facilitate the funding of national priorities when the Federal Government is not facing major budgetary deficits. In addition, it allows for a more flexible response to the budget situation. It recognizes that the will for strict pay-as- you-go enforcement may not exist when government is running a substantial surplus. Overall, the Gregg-Feingold-Chafee-Kerry Budget Enforcement Act of 2002 is an important safeguard against run-away deficit spending. It will provide an important super-majority obstacle against fiscally irresponsible tax cuts. It is flexible enough to allow spending on critical national investments regardless of the budget situation, provided there is sufficient support. Perhaps most importantly, it will force a national dialogue on priorities and reestablish deficit reduction as a strategic goal. I urge my colleagues to support the amendment.

Mr. KERRY

Mr. KERRY. Mr. President, I am extremely pleased to join with my colleague Senator Santorum today to introduce the Workplace Religious Freedom Act of 2002. Senators Lieberman, Gordon Smith, Murray, Brownback, Mikulski, and Hutchinson have all joined us as original cosponsors of this important legislation. The Workplace Religious Freedom Act would protect workers from on- the-job discrimination related to religious beliefs and practices. It represents a milestone in the protection of the religious liberties of all workers. In 1972, Congress amended the Civil Rights Act of 1964 to require employers to reasonably accommodate an employee's religious practice or observance unless doing so would impose an undue hardship on the employer. This 1972 amendment, although completely appropriate, has been interpreted by the courts so narrowly as to place little restraint on an employer's refusal to provide religious accommodation. The Workplace Religious Freedom Act will restore to the religious accommodation provision the weight that Congress originally intended and help assure that employers have a meaningful obligation to reasonably accommodate their employees' religious practices. The restoration of this protection is no small matter. For many religiously observant Americans the greatest peril to their ability to carry out their religious faiths on a day-to-day basis may come from employers. I have heard accounts from around the country about a small minority of employers who will not make reasonable accommodation for employees to observe the Sabbath and other holy days or for employees who must wear religiously-required garb, such as a yarmulke, or for employees to wear clothing that meets religion-based modesty requirements. The refusal of an employer, absent undue hardship, to provide reasonable accommodation of a religious practice should be seen as a form of religious discrimination, as originally intended by Congress in 1972. And religious discrimination should be treated fully as seriously as any other form of discrimination that stands between Americans and equal employment opportunities. Enactment of the Workplace Religious Freedom Act will constitute an important step toward ensuring that all members of society, whatever their religious beliefs and practices, will be protected from an invidious form of discrimination. Even after September 11, with a heightened sense of religious sensitivity among the American people, securing greater protections for the religious needs of employees is a major issue. In October 2001, the U.S. Supreme Court refused to hear an appeal from a Muslim woman who was pressured by her employer to stop wearing her head scarf. We must come together now to pass this bipartisan legislation, which is supported by a wide spectrum of religious organizations. It is important to recognize that, in addition to protecting the religious freedom of employees, this legislation protects employers from an undue burden. Employees would be allowed to take time off only if their doing so does not pose a significant difficulty or expense for the employer. This common sense definition of undue hardship is used in the ``Americans with Disabilities Act'' and has worked well in that context. We have little doubt that this bill is constitutional because it simply clarifies existing law on discrimination by private employers, strengthening the required standard for employers. This bill does not deal with behavior by State or Federal Governments or substantively expand 14th amendment rights. This bill is endorsed by a wide range of organizations including the Agudath Israel of America, American Jewish Committee, American Jewish Congress, Americans for Democratic Action, Anti-Defamation League, Baptist Joint Committee on Public Affairs, B'nai B'rith International, Central Conference of American Rabbis, Christian Legal Society, Church of Scientology, Council on Religious Freedom, Family Research Council, Friends Committee on National Legislation, General Board, United Methodist Church, General Conf. of Seventh Day Adventists, Guru Gobind Singh Foundation, Hadassah, International Assocition of Jewish Lawyers, International Commission on Freedom of Conscience, Jewish Council for Public Affairs, Na'amat USA, National Assoc. of Evangelicals, National Council of Churches of Christ, National Council of Jewish Women, National Jewish Democratic Council, National Sikh Center, North American Council for Muslim Women, Presbyterian Church, USA, Rabbinical Council of America, Republican Jewish Coalition, Southern Baptist Convention, Traditional Values Coalition, Union of American Hebrew Congregations, Union of Orthodox Jewish Congregations, United Church of Christ, and the United Synagogue of Conservative Judaism. I want to thank Senator Santorum for joining me to lead this effort. I look forward to working with him to pass this legislation so that all American workers can be assured of both equal employment opportunities and the ability to practice their religion.

Mr. KERRY

Mr. KERRY. Mr. President, I am extremely pleased to join with my colleague Senator Santorum today to introduce the Workplace Religious Freedom Act of 2002. Senators Lieberman, Gordon Smith, Murray, Brownback, Mikulski, and Hutchinson have all joined us as original cosponsors of this important legislation. The Workplace Religious Freedom Act would protect workers from on- the-job discrimination related to religious beliefs and practices. It represents a milestone in the protection of the religious liberties of all workers. In 1972, Congress amended the Civil Rights Act of 1964 to require employers to reasonably accommodate an employee's religious practice or observance unless doing so would impose an undue hardship on the employer. This 1972 amendment, although completely appropriate, has been interpreted by the courts so narrowly as to place little restraint on an employer's refusal to provide religious accommodation. The Workplace Religious Freedom Act will restore to the religious accommodation provision the weight that Congress originally intended and help assure that employers have a meaningful obligation to reasonably accommodate their employees' religious practices. The restoration of this protection is no small matter. For many religiously observant Americans the greatest peril to their ability to carry out their religious faiths on a day-to-day basis may come from employers. I have heard accounts from around the country about a small minority of employers who will not make reasonable accommodation for employees to observe the Sabbath and other holy days or for employees who must wear religiously-required garb, such as a yarmulke, or for employees to wear clothing that meets religion-based modesty requirements. The refusal of an employer, absent undue hardship, to provide reasonable accommodation of a religious practice should be seen as a form of religious discrimination, as originally intended by Congress in 1972. And religious discrimination should be treated fully as seriously as any other form of discrimination that stands between Americans and equal employment opportunities. Enactment of the Workplace Religious Freedom Act will constitute an important step toward ensuring that all members of society, whatever their religious beliefs and practices, will be protected from an invidious form of discrimination. Even after September 11, with a heightened sense of religious sensitivity among the American people, securing greater protections for the religious needs of employees is a major issue. In October 2001, the U.S. Supreme Court refused to hear an appeal from a Muslim woman who was pressured by her employer to stop wearing her head scarf. We must come together now to pass this bipartisan legislation, which is supported by a wide spectrum of religious organizations. It is important to recognize that, in addition to protecting the religious freedom of employees, this legislation protects employers from an undue burden. Employees would be allowed to take time off only if their doing so does not pose a significant difficulty or expense for the employer. This common sense definition of undue hardship is used in the ``Americans with Disabilities Act'' and has worked well in that context. We have little doubt that this bill is constitutional because it simply clarifies existing law on discrimination by private employers, strengthening the required standard for employers. This bill does not deal with behavior by State or Federal Governments or substantively expand 14th amendment rights. This bill is endorsed by a wide range of organizations including the Agudath Israel of America, American Jewish Committee, American Jewish Congress, Americans for Democratic Action, Anti-Defamation League, Baptist Joint Committee on Public Affairs, B'nai B'rith International, Central Conference of American Rabbis, Christian Legal Society, Church of Scientology, Council on Religious Freedom, Family Research Council, Friends Committee on National Legislation, General Board, United Methodist Church, General Conf. of Seventh Day Adventists, Guru Gobind Singh Foundation, Hadassah, International Assocition of Jewish Lawyers, International Commission on Freedom of Conscience, Jewish Council for Public Affairs, Na'amat USA, National Assoc. of Evangelicals, National Council of Churches of Christ, National Council of Jewish Women, National Jewish Democratic Council, National Sikh Center, North American Council for Muslim Women, Presbyterian Church, USA, Rabbinical Council of America, Republican Jewish Coalition, Southern Baptist Convention, Traditional Values Coalition, Union of American Hebrew Congregations, Union of Orthodox Jewish Congregations, United Church of Christ, and the United Synagogue of Conservative Judaism. I want to thank Senator Santorum for joining me to lead this effort. I look forward to working with him to pass this legislation so that all American workers can be assured of both equal employment opportunities and the ability to practice their religion.

Mr. KERRY

Mr. KERRY. Mr. President, the legislation that we are about to pass is the most difficult bill that the Senate has considered this year. Like nothing else that we have seen this year, trade promotion authority has put some of my most deeply-held beliefs in conflict with each other. TPA does two things. First, it makes a broad statement about the importance of international trade. Accurate or not, there is a belief in this city that you must support TPA to demonstrate your unflinching support for greater opportunity for U.S. businesses abroad. The Washington view is that you must support TPA if you believe that political liberalization comes from economic liberalization. The facts suggest that, certainly, lowering barriers to trade in the world is good for U.S. businesses and good for the U.S. economy. Businesses in Massachusetts sold more than $19.7 billion worth of goods to more than 200 foreign markets last year. That is more than $3,000 worth of goods sold abroad for every resident. And, while we tend to think of international trade as being the playground of big business, almost 75 percent of my State's exporting businesses are small businesses. Of larger businesses which have overseas subsidiaries, almost three-fourths of profits earned abroad are returned to parent companies in the United States. That means more jobs and higher wages at home. Today, one-tenth of all jobs in this country are directly related to our ability to export goods and services. When you consider multiplying effects, that number rises to nearly one-third. So there are clear benefits at home to increasing America's access to markets abroad. I also believe that trade and trade agreements have a role to play in helping us achieve our foreign policy goals. The direct American investment that comes to foreign countries as a result of free trade agreements can reduce corruption and promote strong democratic institutions, like an independent judiciary and vibrant non- governmental organizations. And by making other countries stakeholders in a rules-based system of trade, we can diminish the possibility of trade disputes escalating into open conflict. I do support improving Americans' access to foreign markets, and I firmly believe in the power of open markets to create open societies. And so, reluctantly, I will support this bill. I say ``reluctantly'' because I do not believe that the TPA equation is balanced. Granting TPA to any President requires a significant amount of trust. Granting TPA means that you trust the President to negotiate trade deals that are consistent with our American values. The statistics I just recited show that trade is good for the economy. And, certainly, economic development is one important element of those values. But I am afraid that, in recent years, some of our other core beliefs have not been a part of the national debate over trade. When the President negotiate agreements that will lower tariffs and other barriers to trade, it is, in my judgment, equally important that he make sure that our Nation's strong environmental and labor laws are upheld. It is equally important too that he ensure that we have a forum to export our views on these issues to the nations with whom we engage in expanded commerce. I do not mean to suggest that we can simply direct other countries to develop environmental laws or labor laws that equal our own. True reform in developing nations, be it the development of democratic infrastructure, or the growth of a vibrant labor movement, cannot simply be exported from the United States. These concepts must come to fruition through the will of the people. However, no one disputes that the United States has a significant role to play in helping other countries breathe the air of political freedom. So, too, should the United States play a leading role in helping developing countries breathe clean air and help create programs that provide workers with a safe workplace and the chance to earn a decent wage. Unfortunately, it is clear that, despite the best intentions of NAFTA and in developing the World Trade Organization, labor and environmental issues have not been treated at the same level in our trade policy as investment rights or intellectual property rights. That is disappointing. I regret that this President's track record on domestic labor issues and domestic environmental issues does not fill me with confidence that our Nation's trade policy will be a tool used to help other nations improve their political, environmental and social climates. At every turn, he has sought to diminish the gains of the labor movement and roll-back environmental regulations in his own country. I surely hope that this is not the message that he intends to carry with him as he negotiates free trade agreements with Chile, Singapore and others. Some of us in this body have put forth amendments which we believe could have helped us to trust the President more. These amendments would have elevated labor and environmental protections to the same level of intellectual property protections, or, as my amendment would have, guaranteed that future trade agreements would not corrode American legal principles and Constitutional rights. All but one of these were unsuccessful. The defeat of these amendments leave us with no safeguards for legitimate public health and safety laws. We have no assurances that other nations with whom we forge agreements under this bill will honor their existing labor or environmental laws. We have no reason to suspect that the President will be a forceful advocate for some of our country's most cherished beliefs: that clean air, clean water and preservation of the outdoors are worth fighting for; that workers should have the right to organize; and that U.S. sovereignty must be protected. In spite of these glaring weaknesses, I intend to support this bill. That is how strongly I believe in the principle of free trade, and the belief that we can help other countries improve their political environment by embracing them, not isolating them. But I would caution this President and others that we need to pay much more attention to some of these other trade issues, issues that have been on the margins of trade policy for too long. If we do not heed these warnings, then that fragile coalition that holds supporters of free and fair trade together will crumble, as it nearly did in the House and nearly did here in the Senate. I would like to make one final point about this legislation. The bill that we will pass shortly contains an enormous improvement in the trade adjustment assistance program. This is much-needed. In the long-run, more international trade means more opportunity and jobs for Americans. In the short-term, however, it creates changes in communities. Some people lose jobs. Factories, the lifeblood of some towns and cities, close. Eventually, new employment opportunities are created. But it is imperative that we have a way to ease that transition. This TAA package does just that. For the first time, we are subsidizing health care for laid-off workers. That is a remarkable step forward. We are attempting something new by creating a wage insurance program to make sure that older workers do not suffer sudden and destabilizing pay reductions. These are critical expansions of TAA, and they could not be more timely for some of my constituents. In Northampton, MA, the Techalloy plant that processes wire rod steel will close on July 1. They've been hurt by the President's decision to impose 15 percent duties on raw wire rod steel from abroad. Now, I know that the 42 workers currently at the Techalloy plant would much rather have a job than TAA benefits. They want to work. It's not the same as maintaining their job, but this new package will help these folks stay on their feet while they seek new employment. The TAA package that we will approve is welcome, and I am proud to support this provision. I particularly want to thank Chairman Baucus, Senator Grassley, and Senator Bingaman for all of their hard work in helping shape this reauthorization of the TAA program.

Mr. KERRY

Mr. KERRY. Mr. President, are we operating under any time constraints?

Mr. KERRY. And the opponents?

Mr. KERRY. Mr. President, I yield myself such time as I may use. Let me respond to the distinguished ranking member. What he read was a Supreme Court case about eminent domain. That is completely separate from what I am seeking to address. It has nothing to do with what my amendment does. He talked about the Supreme Court and the standard with respect to the right of our companies to seek redress if a government takes their property. That stays exactly the way it is today. That is expropriation by eminent domain. What we are talking about is exclusively regulatory action, when a government takes regulatory action, passes a law to implement environmental standards, or a health standard, and a company then comes in and claims that the particular regulation was purposefully to discriminate against that company, not for the welfare of its citizens. Now, are the Senators saying we should not require that appropriate standard, that you ought to be able to win a regulatory expropriation when it is discriminatory? That is not a problem; that is a standard. That is an appropriate way to measure whether or not a regulation reaches too far or is appropriate. Let me be very precise about how this works. Consider the MTBE ban in California. Nine States have now followed California's lead. California--and the Governor or the State--is being sued by a Canadian company claiming their removal of methanol is discriminatory. It is geared as an expropriation that has taken their value. Nine States have now done the same thing. Are they all going to be subjected to suit? Are we going to have every company have the ability to come in and say, we think you are just passing this, whether or not you have hurt our business, so they settle for just $175 million? That is what I talked about--a nuisance settlement of $175 million that comes out of the taxpayers. Chapter 11, as it currently stands, is being used to threaten governments from enacting public health measures. Here is an example: The Canadian Government has sought to ban the use of the words ``light,'' ``mild,'' and ``low tar'' from cigarette packaging, and Philip Morris recently issued a warning to Canada that, under NAFTA, Canada must compensate foreign investors when measures expropriate investments in Canada. So Philip Morris is warning Canada that their use of the words ``light,'' ``mild,'' and ``low tar''--banning those words--is taking value away from Philip Morris. Should that be subjected to a standard of being discriminatory against Philip Morris, or to a standard of, is that a legitimate health concern of the Canadian Government? It works both ways. It absolutely works both ways. Now, there are three significant areas where the Baucus bill, as amended, falls short. No. 1, it does not ensure that the long-held U.S. Supreme Court case law on expropriation on what is not expropriation is upheld. I reiterate, we are not defining expropriation. We are simply saying that under the long-held U.S. case law this particular kind of reduction of business is not when an expropriation ought to apply because otherwise a secret--we don't have any right to know what the deliberations are, we don't know what the standards are. It is an arbitration panel of three judges of another country that is going to decide. We think that is an expropriation. The second thing is that I do not rule out the possibility that an investor could bring an expropriation case. We simply limit the use of an expropriation standard to those cases in which U.S. case law recognizes regulatory taking. Secondly, we provide a protection for legitimate public interest law. The amended bill does not guarantee that a legitimate domestic law is protected. My amendment provides safe harbor for Federal, State, and local laws and regulations protecting public health and safety and the environment, except when the action taken is primarily discriminatory. That is an appropriate standard to apply, and that is what we ought to vote for. The current bill allows claims to be decided on a question of whether the free flow of goods or capital is impeded by public health. That is not a standard we should want to adopt in our country. Thirdly, we uphold the principle of due process. The principle of due process is somewhat close to the international law of what is called fair and equitable treatment. But fair and equitable treatment is completely vague. We don't know what it means. We don't know how that standard has been applied. It can mean many things. One thing we have tried to do over the years in this country is define clearly under the due process clause of the U.S. Constitution what process is, what rights attach to people. If the concept of fair and equitable treatment remains the guiding principle of the investor-state dispute panels, without further clarification, then you have a very real risk that those panels import a different legal standard into their consideration than that which our U.S. companies have a right to expect. I believe American companies win with the passage of this amendment because, in fact, it has the practical effect of making future investor-state arbitration panels have their rulings based on concrete, well-defined U.S. laws, rather than nebulas, uncertain, unclear, international precedents. Under my amendment, an American investor can win before an arbitration panel if they show they were discriminated against on the grounds of national treatment or if the offending regulation is enacted or applied in a discriminatory, purposeful fashion. If a foreign government passes legislation that is discriminatory, of course, an investor will be able to seek compensation. There is nothing in this legislation that diminishes their capacity. What I sought to do in my amendment originally was to guarantee that no foreign investor would have greater rights than a U.S. investor. The amendment by the chairman simply says they will not have lesser rights. It does not protect their right to guarantee that a foreign investor will not have greater rights. That is what this is about. I hope my colleagues will help American businesses to be properly and adequately protected and our States to be protected with their laws of public purpose: to protect the environment and protect our health standards. I reserve the remainder of my time.

Mr. KERRY. Mr. President, what is the time situation?

Mr. KERRY. Mr. President, I yield myself such time as I may use.

Mr. KERRY. Mr. President, how much time remains?

Mr. KERRY. How much time do I have remaining?

Mr. KERRY. Mr. President, the Senator is correct, that is the language that was used, but it is preamble language. It is in the preamble. It has no teeth. There is no substance to it. What I am trying to do is guarantee in each of these categories that there are teeth, there is substance in the law that, in fact, guarantees you will not have those greater rights because still all of this is subject to the international panel's application of standards; they ultimately will decide. Unless we establish some standard by which to measure it, that is literally a statement without any enforcement mechanism whatsoever. I reserve the remainder of my time.

Mr. KERRY. Madam President, how much time remains?

Mr. KERRY. Mr. President, I yield myself such time as I may use. I want to acknowledge the hard work the chairman and ranking member and those who are trying to press this issue have made. The issue I am raising does not threaten the capacity of investor-state relationships to be protected. Let's be very clear about what is happening. As is so often the case on the floor of the Senate, especially when we are limited in time as to how much debate we are going to have, and when we get into these pressure situations, big arguments are thrown out. People raise these red herrings and these notions of sort of a threat to business or to treaties or other things. I respectfully submit that a careful analysis of what we do does not in any way threaten the capacity of the investor-state relationships to be protected under treaties and, specifically, for this trade relationship that somehow we are going to approve on the floor--and I am going to vote for it. I am not trying to disrupt the process. I am here trying to make this process fair and sensible. The fact is that chapter 11 of NAFTA is designed to provide foreign investors with the means to seek compensation when a government takes action to decrease the value of the investment. We obviously want that; other investors want that. If a government takes an action that decreases the value of the investment, people have a right to recourse. Either the action of the government might be through the direct physical seizure of property or it might be indirect regulatory action of some kind. That process, which we set up in this legislation, is the model for how that will be done. So it is appropriate that we do that here. But I am not coming to the floor expressing a concern that is mine alone. The U.S. Conference of Mayors supports this amendment. The National Council of State Legislatures supports this amendment. The National Association of Attorneys General supports this amendment, and countless other State and government entities do. The attorney general of the chairman's home State of Montana supports it. On May 14 he wrote: I applaud the Baucus amendment, but remain concerned that the amendment would not be adequate to protect United States sovereign interests and preserve the authority of the U.S. Government at all levels to enact and enforce reasonable measures to protect the public welfare. A lot of people have grown upset and concerned about the effect of NAFTA's investment settlement dispute process and the effect it has had on the ability of those States to promulgate legitimate health and safety laws. The National Association of Manufacturers--no supporter of this amendment--has acknowledged that investment provisions such as you find in chapter 11 of NAFTA merit improvement. They have even acknowledged it needs improvement. So the test here is not whether we ought to be doing this, but whether we are improving it. The reason it is so important is the following: When we passed NAFTA, there wasn't one word of debate on the subject of the chapter 11 resolution--not one word. Nobody knew what was going to happen. Nobody knew what the impacts might be. And, steadily, foreign investment in the United States is increasing. That trend will be accelerated as we have a free trade area of the Americas agreement that is being developed. A recent report by the Taxpayers for Common Sense at Tufts University shows that, unless we change the chapter 11 model, claims against the United States will average $32 billion annually. That is just in terms of claims. It doesn't even address the millions of dollars the Federal Government is going to spend defending against these claims. Let me explain this in sort of graphic terms. I want to add that among the groups supporting the amendment are the National Conference of State Legislatures, Conference of Mayors, National League of Cities, Conference of Chief Justices, Taxpayers for Common Sense, Consumers Union, League of Conservation Voters. All of them support the notion that we have to change this particular amendment. The letters of the attorneys general of New York, California, and Montana are particularly instructive. The attorney general of New York wrote: The rights granted foreign investors under H.R. 3005 could go far beyond the carefully fashioned taking and due process jurisprudence articulated by the U.S. Supreme Court under the 5th and 14th amendments. In other words, unless we change this, we are giving to foreign investors the right to have an application of standards that go well beyond the fourth and fifth constitutional amendments, which are applied to businesses here at home. It has the ability to apply a takings standard, an expropriation standard that, in effect, is subject to a whole looser standard than that required by the Constitution of the United States. What my colleagues are being asked to vote on is, Do you believe that American businesses ought to be subject to a fair playing field and that foreign investors should not be advantaged over American investors and the standards by which our businesses do business at home? There are a lot of examples. Let me share quickly the concern of Montana Attorney General Mike McGrath. He wrote: I frankly believe an overwhelming majority of American people and Montanans would react with outrage to the idea that an otherwise final and definitive ruling of our domestic courts would be reversed by foreign arbitration panels and could provide the basis for monetary claims against United States taxpayers. He could not put it better. That is exactly already what is happening. It is happening right now. Let me share with my colleagues a few of the cases in which that is now happening. First of all, there is the Methanix case, the most notorious of the cases, in which a Canadian corporation is suing for California's ban on MTBE. The details are fairly straightforward. In 1998, the Governor of California banned the fuel additive MTBE because it has a tendency to leak out of gasoline storage tanks at a much faster rate than other blended gasoline, such as ethanol. We have just been through an ethanol fight on the floor of the Senate. We decided that we think it is preferable to use ethanol to MTBE. MTBE travels quickly through the ground water, contaminating drinking water, leaving it foul smelling and bad tasting. It is also a known carcinogen and suspected carcinogen in humans. Methanix, whose subsidiaries produce methanol, which is the M in the MTBE, filed a chapter 11 claim on the grounds that the ban diminishes their expected profits. Methanix claims that this public health law discriminates against the flow of capital and therefore discriminates against the goals of NAFTA. I am not sure any of us would say that makes a lot of sense, but the arbitration panel has yet to agree, and the case demonstrates exactly why we need to protect legitimate health and welfare laws. The Methanix case is the most expensive of any pending claim. They are seeking compensation and almost $1 billion in damages. It is not just California that would suffer. All of us as a consequence would suffer because each State is subject to the same kind of problem, and that State, California in particular, would lose money out of education funds, highway funds, or other grants from the Federal Government were that case to succeed. A less well known case, but perhaps more egregious, is the case against a jury finding by a Mississippi court against the Lowen Group, which is a Canadian-owned funeral parlor chain. Lowen was sued by a Biloxi funeral home for unlawful anticompetitive actions designed to drive up local insurance costs, forcing smaller funeral parlors into selling. A Mississippi State court agreed with the Biloxi funeral home and awarded $500 million in damages. Lowen appealed to the State supreme court which refused to reduce the bond amount needed to receive a stay. Instead of paying a bond, Lowen settled the case for $175 million. It then proceeded to the NAFTA tribunal to file a claim. Lowen's chapter 11 case is predicated on the argument that the trial court's refusal to vacate the verdict was tantamount to an expropriation, and the case is now pending. The message of this case and of the Methanix case could not be more clear: Anytime a foreign corporation dislikes the outcome of a U.S. jury trial, it can run to an international arbitration panel and try to get the ruling reversed. That is not what we wanted to have or intended to have happen in NAFTA, but the only way to protect it is to change that law now. There are other cases. Let me call attention to the Mondev case which has nothing to do with the environment but everything to do with our sovereignty. The doctrine of sovereign immunity is centuries old in this country, and it holds that you cannot sue a government unless such a lawsuit is expressly permitted. But a claim against an action taken by the city of Boston by Mondev International, a Canadian real estate developer, has challenged this concept before a NAFTA tribunal. The Mondev case is an example of those cases where we ultimately see the sovereignty of the Supreme Court of the United States being subjected to second-guessing and questioning by a secret tribunal of NAFTA, over which we have no control of the standards because the standards have not been set to respect the Constitution of the United States. I can remember how many times Senator Helms from North Carolina has come to the Senate Chamber and said we should not sign a treaty that somehow obviates the demands of the Constitution of the United States. It seems to me that is precisely the principle which is at stake here, which is why Senator Helms, who I know will not be here to vote, supports this amendment as others who believe the Constitution should not be subjected to second-guessing by an international tribunal. These second-guessing efforts will have a chilling effect in the end on investment. They create expensive litigation. Just the threat of the litigation is, in and of itself, a chilling effect. I believe, based on these claims, chapter 11, as it currently stands, can be used to threaten governments from enacting public health measures. The Canadian Government has now sought to ban the use of the words ``light,'' ``mild,'' and ``low tar'' from cigarette advertising. Philip Morris recently issued a warning to Canada under NAFTA that Canada must compensate investors when measures expropriate investments in Canada. We are going to go back and forth on this. We are going to have a constant second-guessing and a constant challenging of these standards. It seems to me we ought to recognize that the Baucus bill, as amended, does not ensure that long-held U.S. case law on expropriation is upheld. The Baucus bill allows cases still to be decided against the United States when regulatory or statutory actions result in a partial taking. Such a case would stand on far more tenuous grounds in U.S. courts based on U.S. law and legal precedents. My amendment would ensure that foreign companies could use investment dispute mechanisms. We do not say they cannot do it. We honor the concept of NAFTA or any treaty creating a dispute mechanism, but when a Government action causes physical invasion of property or denial of economic use of that process, that should be consistent with U.S. Supreme Court holdings. In the Concrete Pipe case which was decided by the Supreme Court in 1993, the Court said: Our cases have long established that the mere diminution of a value of property, however serious, is insufficient to demonstrate a taking. We should not subvert that holding of the Supreme Court by refusing to embrace in this legislation a recognition of American sovereignty in court procedure. I reserve the remainder of my time.

Mr. KERRY. I will not use all that time. The Senator from Montana is correct, we are reaching the end. Let me once again answer my friend from Texas and say we have established screening mechanisms with respect to certain kinds of cases all through our country. Lawyers have accepted the notion--we even have rules in the Federal court under rule 11, if I recall it correctly, which seek to deal with the question of frivolous lawsuits. What we are trying to do is recognize that we want to establish some order in the system. I think most people would agree that the challenge by the Canadian company to the California statute with respect to MTBE is frivolous. No one here would believe that is somehow discriminatory or a taking; nevertheless, we have a lawsuit. California taxpayers are exposed for the potential of $1 billion for what was a legitimate health effort. If people think that ought to be tying up the arbitration panels of rule 11, go ahead and vote for it, but I do not think it should. There ought to be some kind of mechanism by which you have a signoff on whether there is a legitimacy to the claim. Since it is your own Government making that judgment, particularly with respect to a U.S. business interest, it is really hard to conjure up a scenario within which they are not going to be pretty permissive if there is some legitimacy to a claim. What we really see here is resistance to the notion that we should raise the standard of international behavior with respect to the potential of what is or is not a cause for action in an expropriation. I submit to my colleagues that the standard here is vague. The standard is now carried out in secret. It is carried out according to standards that our businesses do not know and cannot anticipate. It is carried out by a standard that is less than the rights afforded our businesses under the U.S. Constitution; less than those rights, according to the due process clause, the fourth and fifth amendments; and less than those rights according to the settled case law of the Supreme Court of the United States for a long period of time, to quote the Supreme Court itself. I believe we should put in some objectives which state clearly what we would like to have negotiated. All of this is a negotiating objective. I do not deny what the Senator has said. These are goals. But why not be precise about what we want negotiated and the standards that we think ought to apply? If they find the kind of problems the Senator from Texas is saying, they will not negotiate it the same way. These are all objectives. Let us vote for a standard and an objective in the negotiations so we arrive at the better protection of American businesses with respect to expropriation and we do not submit our States to a series of frivolous lawsuits as they are currently and we do not allow a process of intimidation to take place between company and government as we see in the Phillip Morris-Canada situation with respect to smoking. That is what this vote is about. Since this is not the meat and potatoes in the end anyway, what we vote is not the final word. What we are voting is an intent and a direction, and I hope my colleagues will vote the intent and direction of raising the standard by which the U.S. businesses are going to be treated in the trade resolution process. I yield the remainder of my time.

Mr. KERRY. Mr. President, I will speak to what the distinguished chairman has just said because, once again, this amendment does not do the things that have just been alleged. Let me be very specific about it. First of all, the chairman sort of brushes off the serious consequences to U.S. interests by the status quo. I would ask him, and I would ask my colleagues, does anybody here believe that the Governor of California made the decision he made with respect to methanol on a discriminatory basis? There isn't anybody in America who would suggest that he did. Yet that case is being brought now. It exists. The fact is we do nothing to change the standard by which a business would have the opportunity to resolve its investor-state relationship. In fact, we are not declarative as to the issue of expropriation. What we do in this amendment is seek to define over 80 years of Supreme Court decisions as to what is not an expropriation. We do not say what it is, which is what the Senator was just arguing. We do not define ``expropriation.'' All we do is point out what it is not. We clarify exactly what the Supreme Court has said in the 1993 Concrete Pipe case, where they said: Our cases have long established--this isn't hard to define; these are the words of the Supreme Court--we have long established that mere diminution in the value of property, however serious, is insufficient to demonstrate a taking. So the Supreme Court of the United States has established a standard which they say we have long established, which Justice Scalia reaffirmed as recently as 1999 in the College Savings Bank case. So all we are doing is saying that is not an expropriation. But if you allow this law to stand as it does today, it could be an expropriation by the standard that an arbitration panel decides to apply. So we are subjecting our States and ourselves to the resolution of a dispute by a standard that we know has long been established by the Supreme Court to be otherwise. They might define an expropriation to be exactly what the Supreme Court has said it is not. All I seek to do in this amendment is to say we embrace the definition of the Supreme Court as to what it is not. We do not try to establish what it is beyond what it is not. So, once again, people are grabbing at things to try to make this seem more perilous than it really is. Moreover, with respect to the screening, the screening applies to a U.S. company applying to a U.S. screening process. It is in our interest to have knowledge that we are not, in fact, engaging in some wholesale discriminatory process that works contrary to the intent of the treaty and that there is a legitimate claim. But what happens in another country is up to that country. It is up to that country now. If they want to go ahead and bring suit against us, just like the Canadian corporation has done, suing California for $1 billion because they are trying to protect its citizens from the effects of MTBE--and now they are at risk for $1 billion under this silly law the way it stands. It is silly law, and nobody even debated it when it was put into place originally. It has not even been debated. This is the first time we have debated it on the floor of the Senate. We are seeing a growing number of lawsuits now where companies are coming in and saying: Hey, we don't like that health law. We don't like the definition of ``cigarettes.'' We are going to come in and tell you you can't use those words; you are diminishing our ability to sell cigarettes in your State. So you are taking away our property. Your citizens owe us money. This is common sense. Sure, we have a lot of people who like the status quo because they profit from the status quo. But that doesn't mean it is good law. And that doesn't mean it protects the interests of the United States. And that doesn't mean it is based on common sense. I respectfully suggest that what we are doing is a sensible way of trying to establish the high standards of the court system of the United States. What other people want to do in their countries is their business, but this is the way we should set up the screening in ours. There isn't anybody here who is going to argue that the international business structure is the cleanest or most devoid of corruption today. The United States is one of the few countries that has the anticorrupt businesses practice. As far as I know, in recent years, the French were allowed to deduct bribes on their income taxes. And there are a whole bunch of folks who run around the country offering money under the table, all kinds of different ways. This will be the first time I have heard people on the floor of the Senate defending the capacity of these other countries to do clean business. I think we ought to raise the standard. That is precisely what I am trying to do. I reserve the remainder of my time.

Mr. KERRY. Once again, I say with respect to the Senator from Texas, he is both missing and distorting the point at the same time. I hope my colleagues notice for the first time in history since I have known the Senator from Texas to be in the Senate he is defending the right of lawyers to sue without any kind of screening or any kind of effort to restrict a frivolous suit. I have never heard the Senator from Texas do that. I am delighted that he is protecting the right of lawyers to sue without any screening. This screening is exactly what was recommended, I might add, in a letter from Chairman Baucus to Ambassador Zoellick on March 26. Here is what the letter said: It may be prudent to establish screening mechanisms in other sensitive areas such as environmental regulation as a way to ensure that frivolous or inappropriate claims can be dismissed as early as possible. In general, I view this concept as consistent with the objective of the TPA bill to eliminate frivolous claims and deter their filing in the first place. The amendment I have offered includes a small screen to help weed out the frivolous lawsuits, and it would require the approval of the home government to do that, which only works to our benefit. If someone is going to sue in another country they are going to sue anyway. But in order to sue in our country it seems to me we would like to have, once again, the standard applied as to what is frivolous or not. I used to practice law. I remember when we did medical malpractice cases we finally set up a screening mechanism. Many States in America have set up a board which reviews cases using members of the profession to make a determination of whether or not it is a legitimate claim so we don't tie up the court system with a whole set of illegitimate claims. That is all this seeks to do. It does not change the standard whatsoever. We are not changing the standard with respect to any capacity of our companies to be protected abroad or otherwise. We are simply applying, frankly, a standard that most of them can understand; that most would have a full expectation of receiving if they were being tried in a court in our country. I am surprised the Senator from Texas does not want American companies to know that if they are engaged in one of these processes abroad, they are going to have a higher standard applied to them. The standard as developed by the court system of our country, in which most of us believe, we think, is one of the highest standards in the world. Our businesses are better protected by having the continuity of that standard and the certainty of the way in which our case law has been interpreted. I reserve the remainder of my time.

Mr. KERRY. Mr. President, let me answer my friend from Texas. There is no stronger debater, there is nobody obviously we know who is more capable of making an argument, but this is an argument in which the Senator is flat, dead wrong. Only five cases are pending today that were brought against the United States in which we are a defendant under chapter 11. No case has yet been decided. When he says we have never lost a case, no case has been decided in which the United States is a defendant. We are currently a defendant in five cases, and there were only six cases until 1998. Since then, there have been another five cases. What the attorneys general of our States and the conference of mayors of our States and those responsible for the taxpayer--I mean, the businesses are sitting there, many of them with offshore interests, many of them not paying any taxes. It is not going to come out of their pocket, but the average American taxpayer is going to feel the bite if we have an expropriation case decided against an American company that comes against, say, the State of California or another State, and that is going to come out of the pockets of our citizens. Secondly, the Senator from Texas is absolutely incorrect when he suggests this is going to leave our companies defenseless abroad. Let me be very specific. If a foreign government overreaches, the same investor-state mechanism will exist. We do not take away the investor- state relationship. We honor it. We do not take away the investor-state mechanism for resolution of disputes. We leave it in place. All we do is say the standard by which it should apply should not be less than the standard applied by the Constitution of the United States. It is very simple. Our businesses, our States, our taxpayers, should not have another country or another business from another country suing us and claiming that one of our health laws or one of our environmental laws has taken away the profits of that company and then some international arbitration panel, without any American judge who applies the standards of the American courts' case law that has been settled, are going to decide, oh, yes, we think that is a great idea. Let's hit the taxpayers of California to pay us because our investors are losing a lot of money. No one should doubt this is coming down the road. Chapter 11 has yet to be put to the test. Before it is put to the test, we ought to have the courage to say we are happy to honor the concept of an international standard, but don't undo the case law established by the Supreme Court of the United States. That is all we are saying. My colleague from Texas tries to say we will undo years of settled procedure for companies doing business abroad. That is just not true. That is not what we are going to do. We are suggesting a U.S. investor abroad can still win a claim, provided the investor can show they are discriminated against on the grounds of national treatment, which is the international standard we have agreed to; a performance requirement is the basis of the offensive State action; the offending legislation as enacted or applied is discriminatory in purpose; and if there is a wrongful expropriation under the standards by the Supreme Court. I remind my colleague that under the standards of the Supreme Court is Justice Scalia who has argued what that appropriate standard ought to be. Let me be specific. In the 1999 case College Savings Bank vs. Florida Prepaid Postsecondary Education Expense Board, the Supreme Court ruled the activity of doing business or the activity of making a profit do not constitute forms of property that can be the basis of takings claims. That is an opinion authored by Justice Scalia. We are suggesting what the Senator from Texas is allowing for is some arbitration panel with a group of people who do not believe in the Supreme Court standard, to suddenly say we will apply a different standard to the takings. That does a disservice to our businesses and a disservice to the American taxpayer. I reserve the remainder of my time.